Correction for ADA protected workers:Disability discrimination or legitmate disclipine

by on January 14, 2009 · 0 Comment POSTED IN: HR Info Center

Act with deliberation when issuing discipline to a worker protected under ADA guidelines.

HR director Jane Goodfellow’s eyes widened as she listened to her trusted assistant, Carla Simone.

“Bill Ellison did what?” Jane asked.

“He wrote SEX on the whiteboard, in very large red letters, and then told the training class to discuss their intimate lives with each other,” Carla said. “I got an e-mail from one attendee, and another just called me.”

“What was he thinking?” she asked.

“Seems he said something about trust being critical in team-building, and this was an example of trusting your teammates,” Carla responded.

“Oh, my God,” said Jane. “What lousy judgment. Get Bill in here ASAP.”

“I already e-mailed him and told him he was suspended until further notice,” was her response. “I left a voicemail, too.”

A hasty decision may trigger an ADA lawsuit

Jane frowned. True, Carla was an experienced HR generalist, but this decision should have been left to Jane.

“I wish you’d talked to me first,” Jane answered. “I might have made the same decision, but it’s mine to make.”

“Sorry,” Carla said. “We’ve been working together so long that I thought I knew what you’d do.”

“OK,” Jane said. “But I’d like to know if there’s anything about Bill that might cause us trouble. He’s not a member of any protected class, is he?”

“Well, I found out a couple months ago that he has a disability, he’s epileptic, when he fainted during a presentation,” Carla said.

“But that has nothing to do with this questionable sexual content.” Jane groaned.

An ADA lawsuit loomed in her mind. Carla knew of Bill’s disability, she knew it had disrupted work before, and disciplined him precipitately. Sure enough, Bill did sue for Americans with Disabilities Act violations.

Did he win?

ADA Law Decision

No, Bill didn’t win.

The court said his case wasn’t strong enough to go to trial, and dismissed it.

The court said under the law, an employer has to know about a disability before it can be liable under the Americans with Disabilities Act of 1990. Here, Carla, the HR generalist did know of Bill’s disability.

But the mere fact that an employer knew about a disability isn’t enough to prove that an ADA law violation took place, the court added.

What was more, in this case Carla had learned of Bill’s seizure disorder more than two months earlier, and no action was taken against him until he acted inappropriately in the training session.

This timing suggested that whatever discipline was imposed on Bill was not aimed at his disability.

ADA Guidelines for Managers: Act with deliberation

Although the company got out of this case without further damage, it could have been handled better.

HR department heads need to be sure their subordinates and all managers know how to approach cases of gross misconduct by employees who are or may be in a protected class – disabled, member of a racial minority, female, or whatever.

It’s almost always best to deliberate, even if only briefly, before imposing discipline for violations of the law or company policy. Exceptions would include cases of imminent danger to employee safety or security.

Cite: Ainsworth v. Ind. Sch. Dist. No. 3
of Tulsa County, No. 06-5126, 10th Cir.,
4/23/07. Fictionalized for dramatic effect.

Issue 5.21 DOP 6-11-07

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